MALDONADO v. THE STATE OF NEW YORK, #2000-017-602, Claim No. 96366

Synopsis

The Court held that claimant, an inmate injured using a portable grinder in the
industry shop at Fishkill Correctional Facility, did not meet his burden of
proving that the State failed to provide him with reasonably safe equipment and
adequate instruction in the operation of the equipment.

Eliot Spitzer, Attorney General for the State of New York By: John M. Healy, Assistant Attorney General

Third-party defendant's
attorney:

Signature date:

September 27, 2000

City:

White Plains

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

Decision

Claimant, an inmate at Fishkill Correctional Facility, seeks damages for an
injury to his forearm sustained on June 15, 1995 while he was operating a
grinder in the Corcraft industry shop at the facility. Claimant alleges that
defendant was negligent in failing to provide him with reasonably safe equipment
and adequately train him on the use of the machine. A trial on liability was
held on April 6, 2000 and this decision addresses solely the issue of
liability.

The testimony and evidence elicited at trial establishes that on the day of the
accident, claimant was constructing a steel frame, a process which required him
to weld pieces of metal together and use a portable disc grinder to smooth rough
edges. At some point while claimant was operating the grinder, his left sleeve
became caught in the machine and his forearm was drawn against the rotating
disc, leaving a deep 5 to 6 centimeter laceration. Although a safety guard
which partially covered the rotating grinding wheel was standard equipment for
the 7" Makita grinder used by claimant, photographs of the scene taken shortly
after the accident depict the grinder without a guard (Cl's Exh 1). No safety
guard for the grinder was ever recovered.

Eric Little, an inmate present in the industry shop at the time of the
accident, testified on behalf of claimant. He recalled that he had finished an
assignment cutting sheet metal and was watching claimant with the hope of
learning some welding skills. Little stated that he had seen claimant perform
both welding and grinding tasks on prior occasions. He characterized claimant
as a "proficient"[1]

welder but could not speak to claimant's skill as a grinder.

Little testified that he saw no safety guards on any grinder used in the
Corcraft shop. He acknowledged that his assignment was limited to cutting sheet
metal and he was unaware prior to the date of the accident that grinders should
be equipped with safety guards. He further conceded that in an affidavit
prepared shortly after the incident, he made no reference to the presence or
absence of safety guards.

Claimant testified that he arrived at Fishkill in June 1993 and began a
vocational welding program. He remained in the vocational program until April
1995, when he transferred to the industry shop. He recalled that when he began
working in the industry shop, supervisor Lester Szabo provided him with 20 to30
minutes of general safety instruction on the approximately 50 tools used in the
shop, but no specific training on the operation of any particular tool.
According to claimant, he initialed a form certifying that he had received
instruction on the safe operation of each tool "because it was required." He
denied having seen written safety instructions (Cl's Exh 3, at 1) and could not
recall the general instruction given regarding the grinder.

Claimant asserted that he had never operated the grinder in connection with his
welding duties before the date of the accident. On cross examination, he
conceded that he had operated a 4" grinder "once or twice" in the vocational
welding program. He explained that during the time he worked in the industry
shop, he ordinarily worked with a partner who operated the grinder. On the date
of the incident, however, his partner was absent so he performed both welding
and grinding. According to claimant, he requested a grinder with a safety
guard, but only one grinder had such a guard and it had already been assigned
out and was in use throughout the day.

Claimant had returned from lunch and had been operating the grinder for
approximately half an hour when the accident occurred. He recalled that he
immediately wrapped his arm in a rag and the remnants of the sleeve of his
welding jacket and approached a correction officer who escorted him to the
facility clinic. He testified that no one from the facility ever questioned him
about the accident or sought an explanation from him for an accident report.
Claimant acknowledged that he never reported the absence of a safety guard at
any time before or after the accident.

Michael McDonough, a training officer in the industry shop at Fishkill,
testified on behalf of defendant. McDonough explained that the tool room in the
industry shop contained approximately 200 Class A tools, including four
grinders. The tools were inspected on a daily basis. They were distributed to
inmates by one of several civilian employees or correction officers who worked
in the tool room.

According to McDonough, all grinders were equipped with guards and would not be
issued without the guard in place. He stated that the guard on a grinder is
intended to protect against injury in the event the wheel shatters and to
prevent clothing from being caught in the grinding wheel. He expressed his
opinion that removing the guard would not necessarily make the grinder easier to
use, but that an inmate might remove a guard to access the grinding wheel for
use in making weapons. He recalled instances in which inmates had been written
up for removing safety guards, but could not confirm whether those incidents
occurred before or after the date of the incident. He did not know of any
complaint on the date of the incident regarding claimant's use of a grinder
without a safety guard.

Lester Szabo, the Industrial Training Supervisor of the industry shop at the
time of the incident, echoed the testimony of McDonough that all tools were
inventoried and inspected on a daily basis and that only a civilian employee or
correction officer could issue a Class A tool. Szabo further testified that he
provided inmates assigned to the industry shop general written safety
instructions (Cl's Exh 3) and information on proper safety equipment, as well as
1 ½ to 2 hours of safety instruction regarding all the machines used in the
shop. Training on the operation of particular machines was given separately,
either by Szabo or an experienced inmate. The safety instructions for the
grinders recounted by Szabo included warnings not to wear loose clothing and not
to operate the grinder without the safety guard in place. Szabo indicated he
was aware that inmates would sometimes remove a safety guard to grind odd spots,
but he warned inmates if they were seen using equipment without a safety guard,
they would be fired. He did not believe claimant had ever been written up for
using a tool without a guard.

Sergeant John Conklin testified that he was present in the industry shop on the
day of the incident and escorted claimant to the clinic after the accident. He
recalled observing claimant both before and after the accident. He noted that
claimant was using a large grinder, but did not notice whether the safety guard
was in place. He denied that claimant was wearing a welding jacket and asserted
instead that claimant was wearing a thermal top with sagging sleeves and a green
canvas sleeveless apron.

Conklin also testified that only civilian employees and correction officers
had authority to issue Class A tools. He added that an inmate tool clerk could
give out tools in the presence of a civilian employee or officer. Conklin
explained that the tools were gathered up when the inmates went to lunch and
were redistributed when the inmates returned.

Vito DiGirolamo, Jr. testified that he was responsible for conducting an
inventory of 2,700 Class A and Class B tools in the tool room at the industry
shop on the date of the accident. He entered the following statement into his
log book: "Tool room inventory done, all tags and tools accounted for" (Def's
Exh A). According to DiGirolamo, the process of taking inventory included
performing a visual inspection to determine whether tools were safe to
distribute. He stated that if a tool was missing a safety guard, it would be
tagged broken and would not be issued.

DiGirolamo recalled that he saw claimant in the morning of the accident, again
in the early afternoon and immediately after the accident. In the afternoon,
DiGirolamo observed claimant using the grinder, but was not close enough to see
whether the grinder guard was in place. According to DiGirolamo, each time he
saw claimant, claimant was wearing a white thermal top and an apron, not a
welding jacket. After the accident, DiGirolamo secured and searched the area,
but was unable to locate the grinder guard. He acknowledged that as inmates
left the area, they were required to pass through a metal detector. He
recounted that the grinder was tagged broken until a replacement guard was
obtained.

Lance Campbell, Vocational Welding Instructor at Fishkill from September 1987
through November 1995, testified that he trained claimant on the use of various
machinery, including a portable 7" disc grinder. Campbell indicated that as
part of the training, he instructed claimant on placement of the guard and the
importance of proper clothing, including a specially-issued jacket with buttoned
sleeves. He stated that he informed claimant if he received a grinder without a
guard, he should return it to the tool room clerk immediately and notify
Campbell.

Referring to claimant's Training Achievement and Potential Employability Report
(Def's Exh B) , Campbell testified that as a student, claimant passed various
tests which involved the use of a grinder. He stated that claimant eventually
became a teacher's aide and, as such, "certainly" used pedestal and portable
grinders "numerous times" and "absolutely" used a 7" grinder. He further
indicated that as a teacher's aide, it would have been claimant's responsibility
to explain the operation and safe use of grinders to other inmates.

On the evidence presented, the Court concludes that claimant failed to sustain
his burden of proving that his injuries resulted from a failure on the part of
defendant to provide him with safe equipment and adequate training on the use of
that equipment. Although the State owes a duty to inmates who participate in
work programs to provide reasonably safe machinery and equipment with which to
work and adequate warnings and instruction for the safe operation of the
machinery and equipment (

Callahan v State of New York, 19 AD2d 437, 438, affd 14 NY2d 665),
the State is not an insurer of an inmate's safety and liability may not be
imposed based upon the mere happening of an accident. Moreover, an inmate is
responsible for his own failure to use ordinary care (seeCarter v
State of New York, 194 AD2d 967; Kandrach v State of New York, 188
AD2d 910).

The Court accepts the testimony of Vito DiGirolamo that he conducted an
inspection of all Class A tools the morning of the accident and all guards were
present. DiGirolamo's account is bolstered by the harmonious testimony given by
Michael McDonough, Lester Szabo and Sergeant John Conklin indicating that a
grinder without a safety guard would have been tagged as broken and not issued
to an inmate. The Court likewise credits the testimony of Lance Campbell and
Lester Szabo establishing that claimant received instruction on the safe use of
the 7" portable grinder, including the importance of the safety guard and the
need for appropriate clothing, on more than one occasion and that claimant used
the grinder "numerous" times as a student and assistant teacher in the
vocational welding program. The Court found no indication that the testimony of
any of the defense witnesses was infected by bias against the claimant or is
otherwise lacking in credibility. The testimony given by claimant and Eric
Little, on the other hand, was unconvincing.

In sum, the Court concludes that claimant's own carelessness, rather than any
negligence by the defendant, caused the accident and that claimant is solely
responsible for his injuries

. The claim is DISMISSED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

September 27, 2000White
Plains, New York

HON. ANDREW P. O'ROURKEJudge of the Court of
Claims

[1] All quotations, unless otherwise indicated,
are from the tape-recorded trial record.